The Conflict Between the Negative Dimension of Housing Right and the Right of Maintenance of Historical and Cultural Property: A Solution that Cannot be Taken from Constitutonal Law Textbooks

Abstract

The owner of a building affected by a heritage site is held responsible for its maintenance, and it means that any repair to be done has to have IPHAN's previous authorization. The construction of any sort depends on that authorization. However, this process is very expensive due to the fact that it requires the hiring of an engineer and an architect in order to elaborate the projects required. Thus, it is verified, in some cases, a conflict among the inherent duties of the right to conserve and the use of historical and cultural property and the negative dimension of the housing right. The conflicts between fundamental rights, according to some Constitutional Law Textbooks, are solved according to the statements by Robert Alexy or Ronald Dworkin. Nevertheless, the most viable solution is embedded in a public policy concerning the creation of Architecture and Engineering Public Offices. In this study, it was used a bibliographic review, the legislation and heritage sites data. Moreover, those data analysis was performed through the designing of a chart.